As a precedent based system, law lends itself nicely to predictive analytics. In predictive analytics, historical data is used to build a mathematical model. This model can then be used to predict what will happen next.

As case law becomes easier to access, many companies are developing predictive analytic tools based on case law. Predictive analytics can be focused on different areas of law. For example, predicting the outcomes of cases in employment, tax, insurance, or family law. Another area predictive analytics can be focused on are on the actors. For example, predicting how judges decide cases, how successful lawyers tend to be in court, and the success of repeat litigants.

Recently, France has banned a type of predictive analytics. Article 33 of the Justice Reform Act bans individuals or companies from publicly revealing the patterns of judges’ decisions. Anyone breaking this rule can face a penalty of five years in prison.

Theoretically, it should not matter who hears a case. The law is to be applied the same way. But by banning this type of predictive analytics, France is recognizing that sometimes the judge’s identity makes all the difference. How do we reconcile identity with a precedent based system?

(Views are my own and do not represent the views of any organization.)

Comments

Failing to record and publish statistics that can indicate bias or differing interpretations is like prohibiting the police from recording the sex or race of arrested persons: it means that sex- or race-linked bias cannot be detected.

IMHO, that’s a terrible public policy, worse than sabotaging the census. In my opinion, that information should be made available to judges and mediators under seal initially, and made part of the public record after a few months.

Frances’ stance on this matter is understandable. In a democracy making predictive analytic information available only to those who can afford to subscribe to such tools games the legal system especially in those societies that claim equality before and under the law. If such statics are available to the law firms, corporations, governments etc. such information should also be made readily accessible to the public in a transparent society. The questions need answering are, how, who and for what purpose is this analytical information being used.